ILNews

Court: federal suit should have been dismissed

Michael W. Hoskins
January 1, 2007
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The federal District Court in Indianapolis should have dismissed a suit challenging Indiana's prerecorded telephone messages statute because a state court was already considering the issue and could have provided an adequate legal remedy, the 7th Circuit Court of Appeals ruled today.

The three-judge appellate panel also chastised U.S. District Judge Larry McKinney for concluding last October that the then-approaching 2006 congressional election was a reason for urgent attention on this issue.

The 7th Circuit decision came in FreeEats.com, Inc. v. State of Indiana and Steve Carter, Attorney General, No. 06-3900. The issue stems from near-simultaneous disputes in both state and federal courts last year involving Indiana Code 24-5-14-5, the Automated Dialing Machine Statute.

Virginia-based company FreeEats.com sought to halt the attorney general's enforcement of the little-used statute adopted in 1988 and stating: "A caller may not use or connect to a telephone line in an automatic dialing-announcing device unless the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; and that the message was immediately preceded by a live operator who obtained the person's consent before the message began."

Carter's office had filed a state claim in Brown Circuit Court in early September 2006 against another company that had hired FreeEats.com to make the pre-recorded calls to Indiana residents from Virginia. Three days after that state court action, FreeEats.com filed this federal action seeking an injunction to stop enforcement.

Judge McKinney ruled Oct. 24, 2006, that Indiana's statute on automated phone calls does not restrict interstate commerce and is not pre-empted by federal law, but he also denied Carter's motion to stay and dismiss the case pursuant to the abstention doctrine spelled out in Younger v. Harris, 401 U.S. 37 (1971). That ruling required federal courts to abstain from enjoining most ongoing state proceedings unless there are certain extraordinary circumstances.

While the state had argued that the federal court could abstain while similar issues were resolved in pending state court litigation, Judge McKinney decided to forward those issues on because of the federal issues involved - specifically the Nov. 7 general election.

But Circuit Judge Daniel Manion and his appellate colleagues disagreed in an 18-page opinion and remanded the case for dismissal.

"Whether a fast-approaching election justifies refusing to abstain under the principles of Younger is an issue of first impression in this circuit," he wrote.

"We further note that elections, be they municipal, state, or federal, take place on a very regular basis," Judge Manion wrote. "If we were to conclude that waiting until weeks before an election to file a suit seeking injunctive and declaratory relief from a state statute that was enacted eighteen years earlier gives rise to 'extraordinary circumstances,' then it would give license to the federal courts to run roughshed over the state courts' rights to adjudicate properly filed actions involving constitutional challenges that relate in some way to that election. That result would not respect comity, and this it would violate the core principles of Younger."

Aside from the election issue, the 7th Circuit also noted that the Indiana state court clearly has the power to grant a preliminary injunction to FreeEats.com to prevent the state from enforcing the statute, as well as issuing decisions on other federal law preemption and constitutionality claims.
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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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